1. This appeal is appeal against the decision of the Lower Appellate Court that no appeal lay to it against the District Munsif's order refusing to implead the appellant as legal representative of the deceased plaintiff.
2. The Lower Appellate Court's main ground of decision is that the appeal should be against the order of abatement or dismissal of the suit. It is not possible understand how appellant could appeal against an order, to which he would not be a party and on this ground, without deciding whether under he present Code an order of abatement is in any respect equivalent to or appealable as a decree dismissing the suit and without expressing any opinion as to the propriety of some portions of the language used in the Judgments in Suppu Nayakan v. Perumal Chetty (1916) 80 M.L.J. 486, I must reject this ground of decision.
3. The correct view of the law is in my opinion that indicated in Rama Rao v. Rajah of Pittapur I.L.R. (1919) Mad. 219. The Order appealed against in the Lower Appellate Court was a decree because it negatived the appellant's right to the relief, which the original plaintiff had sought in the suit, and was an adjudication on appellant's claim within the definition Section 2(2) of the Civil Procedure Code; and as decree such an order is appealable. Some argument to the contrary was founded on Lakshmi Achi v. Subramania Iyer ILR (1915)Mad. 219 and the dictum on page 493 that the legislature has given no right of appeal against orders under Order XXII Rule 3, I am content to read this as referring only to the fact that no appeal has been given against those orders as such or excent in cases which they also have the character of decrees. That was Sufficient for the decision of the case before the learned Judges one in Which no abatement was in question the appeal being against a refusal to make the appellant a plaintiff, when one representative of the deceased plaintiff, who could prosecute the litigation in succession to him, was already on the record and the refusal involved only an adjudication between that representative and appellant not between the appellant and the defendants in the suit.
4. The order of the Lower Appellate Court must be set aside and the appeal remanded for disposal on its merits. Costs to date in the Lower Appellate Court and here will be costs in the case and be provided for in the order to be passed.
5. The civil revision petition is dismissed. No order as to costs.
Seshagiri Aiyar, J.
6. I agree. Plaintiff sued for a declaration that the decree obtained in respect of the property in suit by the 2nd defendant is not binding on him. Defendants 1 and 2 are his illegitimate daughter and son respectively. The plaintiff died pending the suit. The 2nd defendant applied to be brought on the record as the legal representative of the deceased plaintiff. The District Munsif held that the cause of action did not survive to him, his ground being that there was an attack against the 2nd defendant also by the plaintiff. An appeal was taken to the District Court. The learned Judge rejected it on the ground that no appeal lay.
7. It seems to me that he is wrong. The order refusing to allow the 2nd defendant to continue the suit on the ground that the cause of action does not survive to him finally deprives him of all his rights in the suit and has the effect of putting an end to the litigation altogether. It was suggested that notwithstanding the refusal to permit him to prosecute the suit, the 2nd defendant if he waited till the expiry of 6 months, might, on the abatement of the suit, prefer an appeal, making the refusal a ground of complaint. As at present advised, I am unable to agree with this contention. If the Court was right, at this stage of the suit, in holding that the appellant was not the legal representative and that no cause of action survived to him, it would be anomalous to permit him to file an appeal which can only be done by him in the capacity of legal representative of the deceased plaintiff. In Suppu Nayakan v. Perumal Chetti : (1916)30MLJ486 and in Subramania Aiyar v. Venkatarama Aiyar (1915) 31 I.C. 4 this question did not come up directly for decision. The difference between the old and the new Code of Civil Procedure on the question of abatement makes it doubtful whether some of the observations of the learned Judges in that case are not too broadly expressed. However that may be, both the above decisions recognise that an order refusing to allow an applicant to continue the suit finally determines his right in the suit and as such comes within the definition of decree in Section 2. Rama Rao v. Raja of Pittajur I.L.R. (1919) Mad. 219 although it related to the striking off, of the name of a defendant from the arrary of parties, is an authority for the proposition that the addition or deletion of a person as a party to a suit is a final adjudication of the applicant's rights on the cause of action put forward.
8. I think the principle of that decision governs the present case. Mr. Muthiah Mudaliar relied on Lakshmi Achi v. Subbarama Aiyar I.L.R. (1915) M. 488. In that case, there was no question of the suit abating. One of the two rival claimants was allowed to continue the suit and to obtain the preliminary decree. At this stage, the other claimant applied to be brought on the record in, the place of the deceased person, and for an order that the name of the party, who was brought in, should be deleted. It was held that an order dealing with such a claim was not appealable. In the present case there is no question of any other person being permitted to prosecute the suit. The rejection of the applicant's petition entails the refusal of any relief to any party on the cause of action alleged in the suit. I am therefore of opinion that an appeal lay to the District Court. I agree in the order proposed by my learned brother.